Participant, Expert Meeting on ‘National Constitutions and Globalisation: Amending the (Dutch) Constitution?’ (2010)

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‘On Friday 12 March 2010 HiiL organised an expert meeting on the theme National Constitutions and Globalisation. The topic relates directly to HiiL’s research theme Transnational Constitutionality. This particular meeting was held in the concrete context of a possible amendment of the Dutch Constitution, and with a view to contributing insights to the work of the State Commission for Review of the Constitution (Staatscommissie Herziening Grondwet) which, at the request of the Dutch Government, is presently drafting a report on the desirability of amending the Dutch Constitution.’

For the seminar program, seminar report and more, see:

http://www.hiil.org/events/expert-meeting-on-national-constitutions-and-globalisation-amending-the-dutch-constitution.

About Hiil Innovating Justice:

‘HiiL Innovating Justice helps turn the most promising and disruptive ideas into effective innovations by bringing together the best legal experts, cutting-edge technology, and new types of funding. We differ because we put the users of the justice system first.’

 

Paper presentation, ‘Multiple Sovereignties and the Principle of Separation of Powers’, IXth World Congress of Constitutional Law, University of Oslo (2014)

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About the Congress:

‘The IACL holds a World Congress every 3-4 years. The IXth Congress will take place in Oslo from 16 to 20 June 2014 and is organised by the Department of Public Law at the University of Oslo in collaboration with the Executive Committee of the IACL. The venue for the Congress is the historic Main Building of the University of Oslo, which is in the centre of the city.
The Congress will take place just one month after the 200th anniversary of the Norwegian Constitution which today stands as the second-oldest written Constitution in the world. It is expected that between 300 and 500 participants will attend the Congress, from all regions of the world.
The working languages of the Congress are French and English and simultaneous translation will be provided in plenary sessions.
The IACL uses two principal formats for the scholarly programme of a World Congress: plenary sessions and workshops. Plenary sessions are open to all participants while workshops are smaller and discussion-based. There will be four plenary sessions in this Congress, each of which lasts for 3½ hours.’

About the workshop during which the paper was presented (‘The mutations and transformation of division of powers: the constitutional organization’):

‘The classical characteristics of the Legislative and Executive Powers, which have scarcely changed since the origins of liberal constitutionalism (XVIIIXIX), are no longer adequate concepts or theoretical devices for explaining constitutional reality.

Every division of powers rests on the willingness of a constitutional assembly to divide the power with the purpose of avoiding the abuse of power and tyranny. The search for a system of checks and balances is then based on a liberal conception of political power. Therefore the main instrument to realize this balanced frame is to organize a moderate and representative government as was defended by Montesquieu and other authors; a limited power – they thought – should exclude arbitrariness and despotism.

But it becomes necessary to maintain two essential ingredients of the spirit of division of powers: the efficiency of this frame of government and the limitation of powers itself. The first ensures the supreme and general interest of a community; the second guarantees the fundamental rights and private interests of individuals. Thus both requirements must condition the development of the political society that every Constitution leads.

The issue of division of powers is however, nowadays, clearly renewed, because not only do the Executive and the Legislative powers play a main role within constitutional organization, but also those two classical powers have been submitted to strong transformations. Besides, modern constitutional provisions have created many new organs and powers, taking into account new circumstances and techniques.

On one hand, the judiciary power has affirmed itself step by step as a counter power of political and representative power. On the other hand, there are other powers with a diverse nature and quite different from those organized by the constitution:

the economic and financial powers,
international organizations which can be founded on different bedrocks,
lobbies which represent the interest of different groups in a society or even
collective and minority interests (religions, languages, costumes, regional or national identities), or
media powers.
These entities do not belong to the democratic and representative circuit provided inside constitutions. Those new realities and scenarios should probably be present in the philosophy of the contemporary constitutional organization. We must also underline the existence of supranational organizations, in particular in Europe and Latin America, as well as their intense impact on the transformation of the domestic division of power within the States.’

For sources and additional information, see:

http://www.iacl-aidc.org/en/events/previous-events/103-oslo-congress-oslo-congress-16-20-june-2014;

http://www.jus.uio.no/english/research/news-and-events/events/conferences/2014/wccl-cmdc/wccl/program/workshops/workshop15.html.

[At my request, my own paper was removed from the list of ‘accepted papers’ for copyright purposes.]

Discussant, ‘Values for Europe’ conference, Christian Political Foundation for Europe, The Hague (2012)

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‘”Values for Europe” conference in The Hague

Friday 27 April 2012

At April 27, the ECPF held a congress about the European Union in The Hague, together with the Research Institute of the ChristenUnie party.

The beautiful Old Meeting Hall of the Dutch House of Representatives was full with congress participants that afternoon. The timing of the congress could not have been better, because just in that week important negotiations had taken place about the 2013 budget, in which the ChristenUnie had taken the lead. Budget cuts are necessary because of European agreements in the Stability- and Growth Pact.

Researchers Luitwieler and Ten Napel and politicians Slob and Van Dalen were speakers at the congress. Over 80 attendants participated in the conference.

Dr. Sander Luitwieler, researcher for the ECPF ‘Europe’s Values’ study project, encouraged the Dutch ChristenUnie party to speak henceforth both positive and critical about the European Union. In the Christian political philosophical tradition originating from neo-Calvinism, ‘public justice’ is seen as the core political norm for the task of government.

Luitwieler stated that public justice can be applied also at a supranational level, such as that of the European Union. Public justice can help policy makers to balance multiple interests. Justice should be the leading principle, not the laws of economics and the financial markets.

At the moment, Europe is at a crosspoint between, at the one side, a financial crisis, and, at the other side, also a crisis of legitimacy. The Dutch cabinet has fallen also more or less because of the developments in Europe. The European desire for further integration runs up against a lack of support. This can only be countered if the EU itself recognizes where it is good at and when it also guarantees cultural diversity between member states.

Constitutional law scholar prof. Hans Martien ten Napel argued for ‘a higher form of tolerance’ in Europe than just escaping sensitive issues. Remaining silent about the name of God in a constitution is not religiously impartial. Based on the thought of European law professor Joseph Weiler, Ten Napel observed a ‘Christian deficit’ in Europe.

This is shown in the fact that many academics, especially on the history of European integration, neglect the Christian heritage of Europe. European integration was not defended because of the process itself or because of the results, but because of the ideals that were the foundation for it. Now Europe is increasingly post-Christian, also the European idealism (Weiler even calls it ‘European messianism’) disappears.

Peter van Dalen MEP suggested that research should be done on the possible future of the eurozone. Might it be a good idea to introduce an adjusted euro for countries like Greece and Spain, so that countries can develop their economies in their own ways, taking into account their own possibilities? It has become clear that the current way to deal with the crisis has not led to a solution.’

Source: http://www.ecpf.info/k/n34705/news/view/522996/581712/values-for-europe-conference-in-the-hague.html.

About CPFE:

‘The Christian Political Foundation for Europe (CPFE, formerly ECPF) is an association that acts as the political foundation for the European Christian Political Movement (ECPM). The CPFE supports and underpins the ECPM especially in terms of political content by European co-operation and the introduction of analysis, ideas and policy options.

The CPFE shares the basic program and Christian values of the ECPM. As association the CPFE welcomes thinktanks, NGO’s and individual politicians as members if they agree with these values and the Christian-democrat principles as expressed in the basic program.

The CPFE has three main goals among which its activities will be organized:

  • Connecting Christian inspired think-tanks and NGOs and starting a process of exchange of knowledge and experience. The CPFE website will become a European portal to many organizations, virtual libraries and information on many fields of policy. Also a database will be developed that will help parties, politicians and other organizations in their work.
  • Informing parties and politicians at the national level on important European policy developments that will enable them to react early and efficiently on ideas coming from the EU institutions. This work will be accompanied by actual policy comments.
  • Creating new ideas and approaches to the challenges in a globalised world and a global economy. The CPFE supports in-depth study projects that highlight and work from Christian inspiration. The CPFE wants to formulate attractive alternatives for the dominant secular dogmas in culture and economics.’

About Sander Luitwieler’s book A community of peoples: Europe’s values and public justice in the EU:

http://www.ecpf.info/acommunityofpeople.

Contribution to volume on ‘Rethinking Europe’s Constitution’ (2007)

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‘The beginnings of this book go back to 2003 when the editor asked the contributors and several others to participate in an expert meeting on the Draft Treaty establishing a Constitution for Europe, which at that time had just been made public. Subsequently, all went to work and towards the end of 2004 most participants at the meeting had completed their contribution to the book. During the editing process, however, something happened which nobody – least of all the editor – had taken into consideration. In May and June 2005 – as we all know – the French and Dutch people rejected the Draft Treaty in a referendum, thus bringing the constitutional process to a sudden standstill.

The editor asked the contributors to revise their papers in such a manner that they would also answer the question:
• What should be the basic legal framework of institutions of the European Union in the near and not-so-near future? In other words: what would be essential constitutional elements of a modified Treaty establishing a Constitution for Europe? (Never mind whether it will be called a ‘Constitution’ or not.)

The result is the book you are holding in your hands. We hope that it will be of some use in thinking through the question that should be – but is not – on everyone’s mind because it is a question of invaluable importance for the future of Europe: What should become of the European Union?

All in all, you will find here a collection of eleven essays on various aspects of that question. For clarity’s sake, the essays are divided into four parts.
Part I is about what many constitutions, including the Draft Treaty, start with: the preamble. More specifically, it is about the issue, heavily contended in the recent discussion on the Draft Treaty, whether the preamble should contain any references to God or religion. Paul Cliteur’s essay on God and Religion in the Preamble of Constitutions starts off this book with a thorough discussion of this issue and defends a laicist constitution, radically separating state and church.

Part II comprises four essays, which, from very different perspectives, deal with the overall constitutional structure of the European Union. In his paper United we stand, divided we fall, a Case for the United States of Europe, Andreas Kinneging makes a case – as the title already leads us to suspect – for a United States of Europe, along the lines of the case made by the American Founding Fathers for a strong United States of America. Likewise, in his essay Europe of the 21st Century and the Fears and Formulae of the 18th and 19th Century, Paul De Hert also pleads for the creation of an American style federal state in Europe, but for very different reasons. He is mainly concerned with balancing the powers of the Union and of the national governments, in order to ensure the liberty of the individual. From this same perspective he also discusses and criticizes the Charter of Fundamental Rights. In the third contribution to the second part, in a paper entitled Pluralism and European Unification, Hans-Martien ten Napel explores what a pluralist Christian vision of a good European constitution looks like, and assesses the extent to which the Draft Treaty is consistent with this vision. He concludes that the demands of pluralism are insufficiently honoured. Sophie van Bijsterveld’s essay on Governance in the EU: Democratic Equality and the Separation of Powers concludes the second part. It looks at the developments in the European Union from the point of view of two principles which are also central to the US Constitution: the separation of powers and democracy, with regard to both formal and informal governance of Europe.

Part III subsequently singles out the principle of democracy for further discussion. Everybody knows that, traditionally, the democratic image of the decision-making processes in the European Union and its predecessors is rather questionable. Perhaps in order to counter that image, the framers of the Draft Treaty devoted a number of articles (44-51) explicitly to ‘The democratic life of the Union’. The question is of course whether this questionable image is justified to begin with, and if so, whether constitutional changes along the lines of the Draft Treaty would improve the situation and make the European Union more democratic. The two essays included in part III are rather pessimistic on both regards. In a paper aptly named The Aristocratic Surplus, Armin Cuyver gives an overview of the lack of democracy in the institutions of the European Union. In The Democratic Life in Europolis, Paul Nieuwenburg then follows up with a critique of the above-mentioned articles of the Draft Treaty, which he argues to be muddled and shallow.

Finally, in part IV, four authors discuss different aspects of the governance of the European Union. In his paper The Coming of Age of the European Legislator, Wim Voermans examines the various issues pertaining to the legislative power in Europe. He contends that, contrary to what is often believed, the European Parliament is now a full-blown legislative power, comparable to the national parliaments. In his contribution The President of the European Council as the Servant of the United States of Europe, John Sap focuses on the executive power. Carla Zoethout and Rick Lawson round off the book with essays on the position of the European Court of Justice and its case law. In her paper The Court and the Charter of Fundamental Rights, Zoethout focuses on the question how the European Court should interpret the Charter of Fundamental Rights. And in his paper In Search of Polaris: which Rights for the European Union, Lawson asks which human-rights standards the European Court should apply and how they should be applied.’

My own contribution is entitled: ‘Pluralism and European Unification’.  You can download it here: https://openaccess.leidenuniv.nl/bitstream/handle/1887/12437/Pluralism+and+European+Unification.pdf?sequence=4.

Order information of the volume as a whole:

http://www.wolfpublishers.com/book.php?id=282;

http://www.amazon.com/Rethinking-Europes-Constitution-Andreas-Kinneging/dp/9058502619.